Ex.Cfn, M. Damodaran and Others Vs. Union of India, Represented by Its Secretary, New Delhi and Others - Court Judgment

Excerpt:

Judgment:

Shrikant Tripathi, Member (J):

1. Heard Mr.V.K.Sathyanathan for the applicant and Mr.K.M.Jamaludeen for the respondents and perused the record.

2. All the three applicants namely, CFN. M. Damodaran, Army No.7118239, CFN. C.J. Babu, No.7119171, Sep. Balan Meethil, NO.14505946, have jointly filed the instant O.A. under Section 14 of the Armed Forces Tribunal Act, 2007 for the declaration that they were entitled to the benefit of broad banding (rounding off) of the disability pension with effect from 1.1.1996. They have further prayed for issue of a direction to the respondents to sanction and pay them the benefits of broadbanding of disability pension to the extent of 50%, according to the policy pertaining to broadbanding(rounding off) with effect from the said date.

3. The applicant No.1,CFN M. Damodaran, was enrolled in the Army on 26.9.1971 and was invalided out of service on 3.11.1982 on the recommendation of the Invaliding Medical Board. His disability was assessed at 20% for life. The second applicant, CFN. C.J. Babu, was enrolled in the Army on 26.9.1971 and was invalided out of service on 3.11.1982 on the recommendation of Invaliding Medical Board, with a disability assessed at 20% for life. The third applicant, Sep. Balan Meethil, was enrolled in the Army on 31.7.1971 and was invalided out of service on 16.5.1981. The Invaliding Medical Board has assessed his disability at 40%. All of them claim rounding off of the disability pension to the extent of 50%, as per the Government of India, Ministry of Defence, Letter No. 1(2)/97/D (Pen-C) dated 31st January 2001, (hereinafter referred to as Government Letter dated 31.1.2001), but the respondents allowed the request only with effect from 1.7.2009. According to the respondents, the benefit was available to the applicants with effect from 1.7.2009 as the policy introduced by the Government of India, Ministry of Defence, Department of Ex-Servicemen Welfare, New Delhi in Letter No.10(01)/D/(Pen/Pol)/2009/Vol.II dated 19^th January, 2010 (Annexure R1).

4. It is not in dispute that all the applicants were invalided out of service on the basis of the recommendations of the Invaliding Medical Board and due to that their tenure had been cut. But their claims for the benefit of rounding off of the disability pension to the extent of 50%, according to the Government Letter dated 31.1.2001, were denied by the respondents on the ground that the benefits extended by the said letter were available to those who retired on 1.1.1996 and thereafter. In this connection, the respondents took another stand that Government Letter dated 19.1.2010 (Annexure R1) grants the benefit to pre 1.1.1996 retirees with effect from 1.7.2009 only.

5. This Bench has already considered the issue of broadbanding and the implication of the letters dated 31st January, 2001 and 19^th January, 2009 in O.A.No.120 of 2011 and other connected cases, decided on 21st March, 2013, and settled the issue to the effect that persons who retired to prior to 1.1.1996 were also entitled to the benefit of broadbanding with effect from 1.1.1996 as granted by the letter dated 31st January, 2001. The Government letter dated 19.1.2010 which extended the benefit of broadbanding to pre 1.1.1996 retirees with effect from 1.7.2009 only was held as invalid. The relevant observations made in para Nos. 41 to 43 of the order being relevant on the subject is reproduced as follows:

“41. The learned counsel for the respondents tried to contend that the benefit of the letter dated 31.1.2001 was available to only those armed forces personnel who were in service on 1.1.1996 and joined the service thereafter and contended that the benefit provided in para 7.2 and 10.2 of the Government Letter was extended to pre 1996 retirees (both officers and PBORs) with effect from 1.7.2009 vide Government of India, Ministry of Defence, Department of Exservicemen Welfare Letter No.10 (01)/D(Pen/Pol)/2009/ Vol.II dated 19th January 2010 (hereinafter referred to as “Letter dated 19th January, 2010”). In this connection,the counsel for the applicant submitted that in K.J.S.Buttar's case (supra), the Apex Court extended the benefit of aforesaid para 7.2 to pre- 1.1.1996 retirees also by holding that the classification, pre and post 1.1.1996 retirees was violative of Articles 14 and 16 of the Constitution of India.

42. In reply, counsel for the respondents submitted that the aforesaid letter dated 19.1.2010 was not considered in K.J.S.Buttar (supra), therefore, the applicants were not entitled to the benefit of the decision rendered in K.J.S.Buttar's case. In our view, the submissions made on behalf of the respondents do not appear to be correct in law. In this connection, the decision of the Constitution Bench in D.S.Nakara vs. Union of India and Ors. (1983) 1 SCC 305, is also very relevant, which has laid down the principle that the classification amongst the pensioners based on the date of retirement amounts to denying the equality as enshrined in Article 14 of the Constitution of India. The Constitution Bench very specifically held that for the purpose of pension benefits, the pensioners form a homogenous class, which cannot be divided by arbitrarily fixing an eligibility criterion unrelated to the purpose of revision of pension. It appears that the Apex Court in K.J.S.Buttar's case propounded the aforesaid quoted principle on the basis of the decision in D.S.Nakara's case (supra). In K.J.S.Buttar's case, the Apex Court very clearly held that restriction of the benefit to only officers who were invalided out of service after 1.1.1996 was violative of Articles 14 and 16 of the Constitution of India, as the scheme of rounding off of the disability pension was in the form of liberalisation of an existing scheme, therefore, all pensioners were required to be treated equally. The Apex Court while propounding the said principle, examined certain previous decisions rendered in Union of India vs. Deoki Nandan, 1992 Suppl.(1) SCC 323, State of Punjab vs. Justice S.S. Dewan, (1997) 4 SCC 569 and Union of India vs. S.P.S. Vains(Retd.) and Ors. 2008(9) SCC 125. The observations of the Apex Court made in paragraphs 11, 12,13,14 being relevant are reproduced as follows:

“11. In our opinion, the restriction of the benefit to only officers who were invalided out of service after 1.1.1996 is violative of Article 14 of the Constitution and is hence illegal. We are fortified by the view as taken by the decision of this Court in Union of India and Anr. vs. Deoki Nandan Aggarwal 1992 Suppl.(1) SCC 323, where it was held that the benefit of the Amending Act 38 of 1986 cannot be restricted only to those High Court Judges who retired after 1986.

12. In State of Punjab vs. Justice S.S. Dewan (1997) 4 SCC 569 it was held that if it is a liberalization of an existing scheme all pensioners are to be treated equally, but if it is introduction of a new retrial benefit, its benefit will not be available to those who stood retired prior to its introduction. In our opinion the letter of the Ministry of Defence dated 31.1.2001 is only liberalization of an existing scheme.

13. In Union of India and Anr. vs. S.P.S. Vains (Retd.) and Ors. 2008(9) SCC 125 it was observed :

“26. The said decision of the Central Government does not address the problem of a disparity having created within the same class so that two officers both retiring as Major Generals, one prior to 1-1- 1996 and the other after 1-1-1996, would get two different amounts of pension. While the officers who retired prior to 1-1-1996 would now get the same pension as payable to a Brigadier on account of the stepping up of pension in keeping with the fundamental rules, the other set of Major Generals who retired after 1-1-1996 will get a higher amount of pension since they would be entitled to the benefit of the revision of pay scales after 1-1-1996.

27. In our view, it would be arbitrary to allow such a situation to continue since the same also offends the provisions of Article 14 of the Constitution.

28. The question regarding creation of different classes within the same cadre on the basis of the doctrine of intelligible differentia having nexus with the object to be achieved, has fallen for consideration at various intervals for the High Courts as well as this Court, over the years.

29. The said question was taken up by a Constitution Bench in D.S. Nakara where in no uncertain terms throughout the judgment it has been repeatedly observed that the date of retirement of an employee cannot form a valid criterion for classification, for if that is the criterion those who retired by the end of the month will form a class by themselves. In the context of that case, which is similar to that of the instant case, it was held that Article 14 of the Constitution had been wholly violated, inasmuch as, the Pension Rules being statutory in character, the amended Rules, specifying a cut-off date resulted in differential and discriminatory treatment of equals in the matter of commutation of pension. It was further observed that it would have a traumatic effect on those who retired just before that date. The division which classified pensioners into two classes was held to be artificial and arbitrary and not based on any rational principle and whatever principle, if there was any, had not only no nexus to the objects sought to be achieved by amending the Pension Rules, but was counterproductive and ran counter to the very object of the pension scheme. It was ultimately held that the classification did not satisfy the test of Article 14 of the Constitution.

30. However, before we give such directions we must also observe that the submissions advanced on behalf of the Union of India cannot be accepted in view of the decision in D.S. Nakara case. The object sought to be achieved was not to create a class within a class, but to ensure that the benefits of pension were made available to all persons of the same class equally. To hold otherwise would cause violence to the provisions of Article 14 of the Constitution. It could not also have been the intention of the authorities to equate the pension payable to officers of two different ranks by resorting to the step-up principle envisaged in the fundamental rules in a manner where the other officers belonging to the same cadre would be receiving a higher pension.”

14. In our opinion, the appellant was entitled to the benefit of para 7.2 of the instructions dated 31.1.2001 according to which where the disability is assessed between 50% and 75% then the same should be treated as 75%, and it makes no difference whether he was invalided from service before or after 1.1.1996. Hence the appellant was entitled to the said benefits with arrears from 1.1.1996, and interest at 8% per annum on the same.”.

43. In view of the aforesaid, the benefit extended by para 7.2 or 10.2 of the Government Letter dated 31.1.2001 with effect from 1.1.1996 could not be denied to 'pre- 1.1.1996 retirees'. The respondents have adopted two different yardsticks between pre and post 1.1.1996 retirees without any reasonable basis. The persons who retired on 1.1.1996 itself have been given the benefit of rounding off of the disability pension and other benefits by the Government letter dated 31.1.2001 with effect from 1.1.1996. But the pre 1.1.1996 retirees have been granted the benefit by the Government letter dated 19.1.2010 with effect from 1.7.2009 only. We do not find any justification in fixing two different dates for the commencement of the benefit for post and pre 1.1.1996 retirees, especially when both these categories are similarly placed, excepting the date of their retirements, which could not be made as the basis to make the classification. In our view, the Government Letter dated 19.01.2010 could not take away the decision of the Apex Court in K.J.S.Buttar's case, which was based on the interpretation of Articles 14 and 16 of the Constitution of India and by which the Apex Court held that the classification was unconstitutional. Any unconstitutional act or order cannot be revived or made effective in any way by any Government order. To put it otherwise, whatever is unconstitutional, it cannot be given effect to by any State action. Therefore, the Government letter dated 19.1.2010 and other consequential letters and actions have to face the same consequence. We are, therefore, of the view that pre 1.1.1996 invalided Officers/ PBORs are also entitled to the benefits extended by para 7.2 or 10.2 of the Government Letter dated 31.1.2001 with effect from 1.1.1996.”.

6. In view of the aforesaid, the O.A. is liable to be allowed.

7. Accordingly, the O.A. is allowed. The respondents are directed to grant the benefit of broad banding (rounding off) of disability pension as provided in para 7.2 of the Government Letter dated 31.1.2001 to the applicants with effect from 1.1.1996, with all consequential benefits. Accordingly the respondents are further directed to sanction and pay the disability pension to each of the applicants at the rate of 50% disability with effect from 1.1.1996 and pay the entire arrears within four months from today, failing which the unpaid amount will carry a simple interest at the rate of 8% per annum, payable by the respondents to the applicants.

8. There will be no order as to costs.

9. Inform the parties.